Wednesday, July 29, 2015

Problems with California's yes-means-yes law

Note: This is an addendum to my
first post on the matter, which endorsed affirmative consent on libertarian/property-rights-minded
grounds, and refuted several counterarguments which I do not find as compelling
as those below.

Although I
support an affirmative consent standard as a general principle for identifying
rape, there are some problems with the way California in particular has chosen
to implement it.

First, I don’t like it when governments dictate
policy details at private educational institutions by attaching strings to the
receipt of tuition assistance. This is partly because I believe those
tuition assistance programs shouldn’t exist in the first place, and there’s good reason to believe
they are a huge contributor to the skyrocketing cost of college education. But such programs are
even more pernicious when their primary purpose in effect is not even their
stated goal of lowering tuition, but rather to grant politicians leverage over
private schools who now need the handout if they are to compete with rival
schools. Under such conditions, the whole scheme just becomes bribery with
other people’s money. To borrow a phrase from Frank Underwood, “when the teet’s that big, everybody gets in line,” and that’s cronyism at
its worst. Policies regarding whom to admit and whom to expel should be made at
the level of each individual college. By using “accept or go bankrupt” grants
as bait, governments can render these private organizations servile to even the
most flippant political whims, which is bad for education as a general trend.

Second, if
the state of California truly supports a yes-means-yes standard in identifying
rape, logic indicates it should
implement that standard in its criminal court system as well. Legislators’
apparent unwillingness to go that far suggests they would be uncomfortable
using the yes-means-yes standard if it meant sending someone to jail, as
opposed to merely expelling them from school. Of course, the average person has
no qualms whatsoever about sending rapists to jail in the abstract. So if lawmakers
do not believe all of the students they hope to expel from college deserve jail
time as well, it raises questions about how many of them they suspect are
actually rapists in the common understanding of the term (the understanding,
mind you, for which state sentencing guidelines and mandatory minimums were
written). Surely if someone is a true sexual predator, turning them loose on
the general, non-college population hardly seems better than keeping them
enrolled.

The decision
to pursue a less-than-jail-time remedy for campus
rapists belies an obvious but unspoken truth about the 1-in-5 statistic bantied
about by so many feminist reformers: the rates can only possibly be that high
if you include a wide-range of distinct infractions under the same label, some
of which are worse than others, and not all of which warrant many years in
prison.

To be clear, I stand by my support of the standard: so long as affirmative consent
is absent, they are all rape, and they are immoral to a degree libertarians in
particular should consider an intolerable violation of the non-aggression
principle. Feminists are damn right to demand that all of these sexual
infractions be illegal, and also right that even the least immoral of them warrants
more forceful public outrage than many Americans presently profess. But in the
process of making that case, we would do well to at least acknowledge the
nuance. A long-time boyfriend who interprets the absence of resistance as a
green light to go from 2nd to 3rd base with his hesitant
girlfriend is wrong, and deserves punishment. Should his victim push for it, it
is reasonable to argue he deserves expulsion. But in a moral sense, his offence
is not equivalent to that of the stereotypical stranger jumping out of the
bushes with a knife, using physical force to suppress, dominate and violate a
clearly agonized victim. If all the facts were known, no jury in the country
would take sympathy on the latter perpetrator, while none would make the former
spend decades in jail.

Which sort
of rape happens more often on college campuses? Everyone seems to have a hunch,
but nobody really knows. Some portion comes from genuine misunderstanding
furthered by mutual alcohol consumption, some comes from aggressive serial
rapists deliberately ignoring explicit cries of discomfort, some probably fall
somewhere in between. But whatever the proportions are, too many feminists deliberately
gloss over these distinctions, perhaps because acknowledging them makes their
statistics less shocking and their crisis less urgent than they want it to
appear.

The good
news is that it worked – they have successfully caught people’s attention – so
at this stage it makes strategic sense to me as a feminist to exchange a bit of
that shock-value for a bit more credibility. Applying a yes-means-yes standard only on college campuses, but not for
the general public, creates a double standard wherein rape means different
things in different places. This can only exacerbate the already dubious
reputation of that 1-in-5 figure, and that’s harmful to progress in changing
social mindsets.

It is
because I oppose this inconsistent double standard that I want to see an
affirmative consent standard in the criminal court system as well. To some, this may seem an even more extreme
position than that of the feminist reforms the past few paragraphs critique.
But I don’t think it is, for two reasons. First, this would ideally be
complemented by broad criminal sentencing reform, which is long overdue quite
apart from your opinion on rape, granting judges more flexibility to sentence
convicted rapists in a manner they deem proportional to the particular
circumstances. Second, incorporating this principle into the legal code would
require a much more specific definition of what constitutes “affirmative”
consent to sexual activity in order to satiate the constitutional due process
rights of the accused, which I think would be tremendously beneficial to
clarifying this very murky subject.

This brings
me to my third problem with California’s law: its definition of “affirmative,
conscious, and voluntary agreement” is rather vague, which is problematic
when schools are operating under fierce political pressures to punish as many
of the accused as possible. Whereas PR management formerly gave schools a
perverse incentive to sweep rape accusations under the rug, the interest in
keeping federal aid and avoiding highly public federal investigation now
appears to be creating new (but also perverse!) incentives in the opposite
direction, wherein schools consider expelling any male students found to engage
in a drunken hookup to be “erring on the safe side.” This is probably a
preferable trend on net than what it used to be, but at the extremes it creates
horror stories every bit
as infuriating
as the prior system.

Occidental
college’s official policy now reads that even if consent is offered explicitly and
affirmatively, it can be silently withdrawn through any “outward demonstration”
of hesitation or uncertainty, in which case “sexual activity must cease
immediately” or else its rape. Perhaps failing to pick up on body language indicating
second thoughts after consent has already
been given makes one a bad lover, but a rapist? Withdrawal of consent is
one thing that SHOULD require explicit notice if one is to accuse one’s partner
of rape. A

Meanwhile,
students in Nova Scotia are pushing for a definition that is quite literally “more
than yes”-means-yes. Explicit verbal consent to sexual activity is not
enough, they argue, if those words are not spoken at a certain minimum volume to guarantee their sincerity! The same people who have for years reprimanded men that “no means no” now
advise them that yes also means no!

Even Amanda Hess
of Slate, who supports the law, admits“[i]t’s
a bit ironic that the lawmakers behind the California bill seem more
comfortable specifying what constitutes rape than actually describing what
clear, unambiguous, enthusiastic consensual sex looks like.”For example, she asks, can affirmative consent be
given while drunk?
It is clear from the word “conscious” that it cannot be given when someone is so drunk as to be unconscious, which
should have been self-explanatory anyway. But there is an enormous spectrum of
drunkenness between unconsciousness and total sobriety, and very many if not
most sexual encounters in college feature participants who fall somewhere in
between.

I happen to
believe that you can consent to sex while drunk, up to a point that is near the
point of passing out, which I will explain more thoroughly in an upcoming post.
Most colleges today, by contrast, are adjudicating these cases on the advice of
Brett Sokolow, who argues that in cases of even minimal alcohol incapacitation,
“they could be stark naked
and demanding sex and it’s irrelevant.”. Resolving this confusion should be seen as a
primary benefit of affirmative consent laws, because the whole point of
affirmative consent is that it is
relevant whether the accuser gave outward affirmation that they consented to
the sexual activity. It is unnecessary, under such a standard, to futilely
demand that both participants engage in some approximate mental breathalyzer
assessment of the other before proceeding, since it is the reasonable
perception of the initiator which matters more than the frame of mind of the
accuser. This simplicity should be appreciated by conservatives and
libertarians who value personal accountability for decisions made while drunk
in other settings, and is consistent with most state laws about DUI, public
intoxication, or any other crime.

In any case,
a serious standard should find a way of drawing that line more specifically,
because if it doesn’t, the ambiguity will make judicial decision-makers more
susceptible to institutional biases. The more room for interpretation there is
in the law’s definition of affirmative consent, the more colleges will need to
“err” on the side of expulsion – not because they’re convinced the accused is
actually guilty, but because they want to keep federal dollars and appease
social critics who might tarnish their reputation.

Nevertheless,
affirmative consent remains a solid guiding principle for identifying rape at
colleges and everywhere else. With a few tweaks and additions, other states
should follow California’s lead in switching to this standard.

1 comment:

Brett Sokolow, mentioned in this blog, corrects the record. https://www.ncherm.org/pdfs/2005NC3.pdf. Our writings, published and publicly available for many years, show quite clearly that the quote in this article is 180 degrees from what we actually believe about incapacitation.